WHAT CAN A JUDGE DO AT A PROBATION VIOLATION HEARING?

Depending on the details of your alleged probation violation, a judge at this hearing may:

1. continue your probation with the same conditions and terms
2. add additional restrictions to your probation
3. order you to jail and revoke your probation

In California, probation is a sentence that may be imposed instead of or along with a jail or prison sentence for either a misdemeanor conviction or a felony conviction.

WHAT ARE THE TYPICAL TERMS AND CONDITIONS OF PROBATION?

Probation in this state always has terms and conditions that usually include but are not limited to:

1. community service
2. mandatory restitution
3. gainful employment
4. abstinence from alcohol and/or drug use
5. for certain sex crimes, the full-time use of an electronic monitoring device
6. a requirement that the probationer may not contact the victim

The violation of any of these conditions will almost always trigger a probation violation hearing.

HOW DOES MISDEMEANOR PROBATION WORK IN CALIFORNIA?

Probation in California lets a convicted offender either stay out of custody or reduce the length of his or her time in custody.

California law gives criminal case judges substantial discretion to set the conditions and terms of probation.

When probation is ordered for a misdemeanor conviction, it is called misdemeanor probation, “summary” probation, or “informal” probation.

FOR HOW LONG CAN MISDEMEANOR PROBATION BE REQUIRED?

Misdemeanor probation may be ordered for as long as five years.

California only requires a judge to obtain a probation report – prior to ordering a misdemeanor probation sentence – if you’re convicted of a sex crime that requires sex offender registration.

On misdemeanor probation, you typically do not have a probation officer. Instead, you appear in court for occasional “progress” reports.

When you appear, the judge will determine if you are abiding by your probation’s terms and conditions. If you are not, a probation violation hearing may be scheduled.

HOW DOES FELONY PROBATION WORK IN CALIFORNIA?

When probation is ordered for a felony conviction, it is called felony probation or “formal” probation. Felony probation is usually ordered for three to five years.

California judges are required to order a probation report before sentencing a felony offender to probation.

A probation report is compiled by the county’s probation department and considers both the details of the alleged felony and the defendant’s criminal record.

WHAT IS A PROBATION OFFICER’S ROLE?

Most felony probationers must meet once a month with a probation officer – a “P.O.”

Meeting your probation officer ensures that you have not left the state, and it lets your P.O. determine if you are in compliance with the conditions and terms of your felony probation.

A felony probation officer will confirm a probationer’s employment and conduct drug testing.

A felony probation officer may also enter a probationer’s home to confirm that no illegal weapons or drugs are in the probationer’s possession. This is called a “probation search.”

HOW COMMON ARE PROBATION VIOLATIONS?

Thousands in California have their probation restricted or revoked every year because of a probation violation. The most common probation violations include:

1. a failure to appear for a scheduled court date
2. a failure to report to the probation officer
3. a failure to pay restitution or a fine when the probationer has the ability to pay
4. an arrest on a new criminal charge
5. failing or refusing to submit to a probation search or a drug test

WHAT HAPPENS WHEN PROBATION IS VIOLATED?

Probationers who violate the terms and conditions of their probation will be ordered to appear at a probation violation hearing – or taken directly to a judge.

If a probationer is suspected of a violation, a P.O. or a police officer may arrest that person and bring that person before a judge.

In other cases – for example, if the probationer fails to meet with the probation officer – the P.O. may ask a judge to issue a bench warrant for the probationer’s arrest.

WHAT ARE YOUR RIGHTS AT A PROBATION VIOLATION HEARING?

A defendant at a probation violation hearing in California has some – but not all – of the same rights as criminal trial defendants.

These include the right:

– to be represented by an attorney
– to call witnesses and to take advantage of the court’s subpoena power to compel witnesses to testify on your behalf
– to offer extenuating or mitigating circumstances
– to the disclosure of the evidence that the state will offer against you

However, there are key differences between a criminal trial and a probation violation hearing. Because a probationer has already been convicted of a crime, some rights don’t apply.

HOW DO PROBATION HEARINGS DIFFER FROM CRIMINAL TRIALS?

For example, probation violation hearings are conducted and decided by judges alone – there is no right to a trial by a jury of your peers.

And in contrast to a criminal trial where the state must prove a defendant’s guilt “beyond a reasonable doubt,” in a probation hearing, “proving” guilt requires only a “preponderance” of the evidence.

In plain language, that means that a prosecutor only has to prove that it’s “more likely than not” that a probationer violated the conditions and terms of his or her probation.

HOW IS HEARSAY EVIDENCE HANDLED?

Additionally, a defendant in a probation violation hearing – unlike a defendant in a California criminal trial – has no right to exclude hearsay evidence.

Hearsay statements may be admitted as evidence in a probation violation hearing if the statements seem to the judge to be plausible evidence.

Hearsay usually is not allowed as evidence in criminal trials because those making the statements are not present to be cross-examined. That’s why it’s called “hearsay.”

WHAT HAPPENS AT A PROBATION VIOLATION HEARING?

At the end of a probation violation hearing, if the judge determines that a probationer is in fact in violation of probation, these are among the factors that will be considered:

1. the probationer’s criminal record
2. the probationer’s compliance prior to the violation
3. the nature of the violation
4. the insights or recommendations offered by the county probation department

Having considered these factors, the judge may reinstate or modify the conditions and terms of the probation or may revoke probation and sentence the defendant to serve a jail or prison term.

When a California judge places a convicted offender on probation, the state is offering that person a chance to live at home and in his or her community, even with a criminal conviction.

HOW CAN A DEFENSE LAWYER HELP?

If that person is you, do not “blow” your opportunity to avoid a jail or prison cell.

Still, if you are accused of a probation violation in southern California, all is not necessarily lost.

An experienced Long Beach criminal defense attorney may be able to persuade a judge that no violation took place, or that even if it did, you should be allowed to remain on probation.

You lose some rights as a probationer, but you don’t lose the right to have an attorney. If you are charged with violating probation, exercise that right – and contact a defense lawyer immediately.